Reversing the chair’s ruling in a disciplinary inquiry

In the case of NATIONAL LOTTERIES COMMISSION V MAFONJO AND ANOTHER (JR 48/2020) [2023] ZALCJHB 184 (23 JUNE 2023)

On or around 1 November 2003, the employee was permanently employed as a Junior Grant Officer.

At the time that she was charged with misconduct on 11 November 2018, she held the position of Client Liaison Officer in Mafikeng, North West.

Following the disciplinary hearing chaired by the chairperson on 25 April 2019, the employee was found guilty of two charges of gross dishonesty and two charges of breaching contractual obligations.

The chairperson stated that the accused employee was a first offender, and further held that that the fact that the employee, although belatedly, reported the relevant information to the ethics officials of the employer and further testified against another employee, “the disciplinary proceedings of the employer must weigh very heavily in favour of the employee”.

The chairperson went on to say that there was no evidence that the employee financially benefited from the misconduct or that the “employer suffered financial loss flowing from the employee’s acts of misconduct”.

The chairperson sanctioned that the employee was to be dismissed from employment with the employer, which sanction was suspended for a period of ten (10) years, on condition that she is not found guilty of any act of misconduct similar to the ones which she was found guilty of.

The employer pegged its grounds for review on the following pertinent points:

● That the said ruling is irrational and unreasonable given the severity of the misconduct committed by the employee;

● The impact of the misconduct on the feasibility of the subsistence of the working relationship and that the employee has not been considered by the chairperson; and

● The employee showed no remorse but sought to escape accountability by alleging that she acted under duress, as there were prospects of human trafficking, unclear state of mind and intimidation.

The chairperson ought to have known that the employer’s Disciplinary Policy categorically stated that dismissal was the only prescribed sanction for an employee found guilty of dishonesty as the first offence. The Chairperson should also have considered that the trust relationship between the employee and the employer could not be sustained in the presence of gross dishonesty.

In the premise and guided by section 158(1)(h) of the LRA, which in essence is a legality review, the decision of the chairperson failed on legality.

The Chairperson, having properly considered the evidence presented, ought to have summarily dismissed the employee.

The ruling on the sanction handed down by the chairperson on 13 December 2019, was reviewed and set aside. The LC substituted the order, and the employee was hereby dismissed with immediate effect.